UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 90-07
An attorney has a constitutional right to appear pro se in a criminal matter, and is not subject to discipline for doing so provided that he observed all other applicable rules of professional conduct.
Under both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility, an attorney may appear pro se in a civil matter, but should take care to avoid using his dual role as a vehicle for placing improper matters before the trier of fact.
The difficulty of arguing as an advocate in favor of one's own credibility as a witness counsels against an attorney acting as a witness in his own case.
Question:
Is it ethical, under the present Model Rules of Professional Conduct and the old Model Code of Professional Responsibility, for an attorney to act as both an advocate and a witness in his own case?
Opinion:
Neither the Model Rules of Professional Conduct nor the Model Code of Professional Responsibility prevent a lawyer from appearing as both a witness and an advocate in his own case.
The underlying request for an advisory opinion did not indicate whether the matter involved was of a criminal or civil nature. This distinction is relevant to the extent that Article I, Section 14 of the South Carolina Constitution specifically grants a criminal defendant the right "to be fully heard in his defense by himself or by his counsel or by both" (emphasis added). Although the South Carolina Supreme Court has the constitutional authority to regulate the practice of law, and in discharging that function has recently enacted the ABA Model Rules of Professional Conduct, to the extent that those Rules might conflict with the State Constitution, the latter must prevail. Thus, the Model Rules and the Model Code notwithstanding, an attorney has a constitutional right to appear pro se in his own criminal case and should not be disciplined by the Supreme Court for doing so, provided that he otherwise conducts himself in an ethical fashion. For example, even a pro se attorney would be subject to discipline for perpetrating a fraud upon the court.
Rule 3.7 of the ABA Model Rules of Professional Conduct controls situations in which an attorney acts as both an advocate and witness in the same case. For example, where the attorney's testimony might be adverse to his client's interest, might limit his ability to fully represent other active clients, or might require disclosure of confidences gained from other clients, Rule 3.7 would prevent the attorney from acting as a witness. See also, Model Rules 1.7 and 1.9. Yet the text of Rule 3.7 and the Comments thereto reveal that it is intended to apply where the attorney is involved in the representation of a third party client. It has no express application to attorneys who appear pro se.
Nonetheless, the Comments to Model Rule 3.7 indicate the possibility of confusion over "whether a statement by an advocate-witness should be taken as proof or as analysis of the proof." That is to say, comments made by an attorney in argument or during direct and cross-examination might be mistaken for evidence by the trier of fact.
The solution to this problem should be two-fold. First, the pro se attorney should, as in all cases, refrain from making remarks or asking questions which improperly raise or place factual matters before the trier of fact. For example, cross- examination should be limited to exploration of facts which have already been developed on direct examination, which itself should be conducted in the absence of leading questions raising factual issues for which there is no foundation. Moreover, closing arguments should be limited to comments on matters which are already in evidence. Second, both the trial judge and opposing counsel should be vigilant in assuring that no improper remarks are allowed into the record. Timely objections should be made by opposing counsel, and the trial judge should be careful to instruct the finder of fact to weigh only those matters which are proper for consideration. In short, due attention to normal procedural safeguards should alleviate any confusion about the evidentiary nature of remarks made by a pro se attorney.
As with Rule 3.7 of the Model Rules, DRs 5-101(B) and 5-102 of the ABA Model Code of Professional Responsibility are expressly concerned with attorneys who are witnesses in cases in which their client is a party. The applicability of these Disciplinary Rules to the pro se attorney is equivalent to that of Model Rule 3.7, and the concerns addressed above should also apply.
Ethical Consideration 5-9 of the Model Code indicates that an attorney who acts as a witness creates the dilemma of arguing in favor of her own credibility. As EC 5-9 itself notes, "If a lawyer is both counsel and witness, he becomes more easily impeachable and thus may be a less effective witness.... An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility." Yet this particular problem seems one of trial strategy rather than ethical difficulty--that one might be an incredible witness for oneself does not raise any ethical issue.
A review of prior South Carolina Ethics Advisory Opinions, South Carolina Supreme Court decisions, Opinions of the American Bar Association Committee on Professional Ethics, and treatises on legal ethics fails to reveal any other applicable rule or precedent on the issue of pro se attorneys.